Monday, December 31, 2012

By Mike Dorf
Well, it's that time of year again: Time for me to post another of my exams. This one is from my Federal Courts class. It was administered a few weeks ago as an open book, one-question, 8-hour, self-scheduled, take-home. It was topical when administered but already has been somewhat overtaken by events. E.g., Japan has a new Prime Minister. I suspect that readers of this blog will enjoy the exam a bit more than my Fed Courts students did.

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Absent new federal legislation, in early 2013, three sets of events—collectively sometimes known as the “fiscal cliff”—will occur. First, federal taxes will increase for most U.S. taxpayers due to the expiration of the payroll tax holiday and of tax cuts enacted in 2001 and 2003—and extended in 2010. Republicans in Congress have expressed the desire to extend tax rate cuts for all taxpayers, while Democrats in Congress and President Obama have stated that they would like to extend tax cuts for all but the highest earners. Second, due to the inclusion of a “sequestration” procedure adopted in the summer of 2011 in order to avert a government shutdown, billions of dollars in mandatory spending cuts will automatically occur. Third, the government will reach the limit of its borrowing authority under a federal statute commonly called the “debt ceiling.” The President and Congressional leaders have been seeking a cliff-avoiding deal, but as this exam goes to press, they have not reached one.

(Everything in the prior paragraph is true. Now we come to the made-up facts.)

On December 24, 2012, Congress passes and the President signs the Securing America’s Fiscal Existence (SAFE) Act. Article I of the SAFE Act establishes a Board of Regulatory Experts (BORE) consisting of seven members, each to serve for a three-year term. The Act itself designates the initial members: the Speaker and Minority Leader of the House; the Majority Leader and Minority Leader of the Senate; the Premier of China; the Prime Minister of Japan; and the Prime Minister of the United Kingdom. (Those three countries rank first, second and third, respectively, among holders of U.S. debt.) After the expiration of the initial terms, new members of the BORE are to be nominated by the President and confirmed by the Senate.

Article II of the SAFE Act consists of the following provisions:

Section 1: The BORE is hereby delegated the authority to promulgate rules governing federal taxes, federal spending and federal borrowing. Such rules shall have the force and effect of law. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.
Section 2: A simple majority of the BORE shall be necessary and sufficient for all legal acts performed by the BORE.
Section 3: Except as otherwise provided in this Act, neither the Administrative Procedure Act, 5 U.S.C. § 551 et seq., nor any other provision of law except the U.S. Constitution, insofar as it applies, shall be read to limit the procedures that the BORE may use in exercising its authority.Section 4: Except as expressly provided by this Act, no court shall have jurisdiction to hear any case directly or indirectly challenging the validity of any rule or regulation promulgated by the BORE, or any part or application thereof, either as an original action or by way of appeal.
Section 5: To the extent that the Constitution requires that a forum be made available to hear a challenge to the validity of a regulation promulgated by the BORE, or any part or application thereof, the BORE itself, sitting as a quasi-judicial body, shall have jurisdiction to hear such a challenge. In conducting hearings under this Section, the BORE shall be guided by the Federal Rules of Evidence and the Federal Rules of Civil Procedure, to the extent practicable.
Section 6: All factual findings of the BORE in a Section 5 proceeding shall be final and unreviewable. A party that brings an unsuccessful challenge under Section 5 of this Act may obtain judicial review of a ruling on a question of law by filing a petition for a writ of error in the Supreme Court of Hawai’i. Notwithstanding any contrary provision of Hawai’i law, the Supreme Court of Hawai’i shall have jurisdiction to hear such a case on writ of error. Should the Supreme Court of Hawai’i hold invalid any rule or regulation promulgated by the BORE, or any part or application thereof, the United States shall have a right to review by writ of error in the Supreme Court of the United States.
Section 7: In any judicial proceeding authorized by Section 6 of this Act for the consideration of the validity of any aspect of the BORE or any of its actions, all legal determinations of the BORE shall be accepted as conclusive, unless they are patently unreasonable.

Section 8: If any part or application of the BORE or any of its actions is found unconstitutional (including the participation on the BORE of any person) it shall be severed, and the rest of the part or application of the BORE (including the balance of members in the event of a finding with respect to participation) shall operate as a fully effective provision or body.The BORE convenes on December 26, 2012 and quickly gets to work. On December 28, 2012, it promulgates a rule that does the following: (a) raises the debt ceiling by $3 trillion; (b) repeals the portion of the sequestration law that requires cuts to the non-military budget while reaffirming the military spending cuts; and (c) extends the payroll tax holiday and the tax cuts for individuals earning less than $200,000/year and for couples earning less than $250,000/year, for three years. The rule states that it becomes effective on January 1, 2013. The vote in favor of the rule is 4-3, with House Minority Leader Pelosi, Senate Majority Leader Reid, Chinese Premier Li, and Japanese Prime Minister Noda voting yes. The three other members of the BORE vote no.

It is now January 2013. You are an associate in the Ithaca, NY law firm of Myron, Taylor & Hall. Ithaca resident Rochelle Rich has come to your boss, Leslie Myron, seeking advice. Rich is a celebrity chef who earned $7 million in 2012. Assuming the same income for 2013, under the new rule promulgated by the BORE, her 2013 taxes will be hundreds of thousands of dollars more than what she expects to pay for 2012. Rich would like to obtain an authoritative ruling by the Supreme Court of the United States invalidating the BORE’s rule on the ground that the BORE cannot constitutionally exercise the power Congress delegated to it under the SAFE Act. Write a memorandum to Ms. Myron identifying the legal obstacles to obtaining such a ruling and evaluating the prospects for overcoming those obstacles.

Friday, December 28, 2012

The abstract of a recent paper by a young tax scholar states as an uncontroversial premise that "fundamental tax reform ... is a necessary part of any solution to the looming budgetary crisis." This is false. Whether the author is referring to short-term budgetary issues, or (as seems clear from the context) to the long-term budget picture, fundamental tax reform is simply not a necessary part of any solution. Fundamental tax reform can take many forms, some of which might be good ideas (while others are surely bad ones), but they are not a necessary part of solving any budget crisis that might be worrying us. (It is also not clear that there is a looming budgetary crisis at all, but I digress.)

Why would an excellent young scholar make such a basic factual error? Because so many other papers include the same error. Even when tax scholarship really has nothing to do with budgetary issues (when, for example, an author is concerned about how the tax system affects air quality, or housing starts, or international trade), it is common to blithely make some reference to "solving the deficit problem," "addressing fiscal doom," "forestalling the coming national bankruptcy," or similar apocalyptic language.

So, the error is common because the error is common; but how did it become common? My usual answer is that there are macroeconomists who constantly push anti-deficit and anti-spending agendas, and they are able to convince a gullible press and political culture that "governments need to live within their means," and all that rot. There is, however, less truth to this than people like me usually admit. We also know (but, I think, try to ignore) that there is a major industry of "deficit scold" organizations, which are the major political drivers of the anti-government presumptions that seep into every aspect of policy discussions. These organizations employ some economists, but the causation runs from the scolds to the economists, not the other way around. Without serious money from the scolds -- for research grants, and buying public relations campaigns that promote the economists and their work -- I have no doubt that most of the economists would find other things to write about.

In my Dorf on Law post yesterday, I argued that the central problem facing the U.S. as 2012 ends is the relentless (and relentlessly wrong) barrage of media commentary that says that both sides are at fault in all of our political standoffs. Yesterday's post took the "false equivalence" argument and broadened it to encompass a critique of the idea that there is always something better about "meeting in the middle," no matter where that middle is. That is Fake Centrism.

The budget/spending/deficit debate is where this fake centrism has been distilled to its pure essence. As noted above, however, this was anything but an organic process. Consider a shameless puff piece in The New York Times earlier this week, profiling the woman who runs the new Fix the Debt scold group, Maya MacGuineas. The article reads like one of those "60 Minutes" bits from the 80's showing, say, Leona Helmsley's sweet side, or a Barbara Walters interview with a celebrity trying to prove how wonderful he is. Without the money and DC-insider political clout that is behind Fix the Debt, there is no way this piece ever would have run, much less been so one-sided.

MacGuineas is, in fact, the head of a longer-running scold group, the Committee for a Responsible Federal Budget. (These groups all seem to have Orwellian names.) The article paints her work there, and in the years before she landed there, as a long slog of thankless work trying to make deficits an important issue, "imagining a day when a president and a Congress might finally work together to curb deficit spending." Despite recent disappointments, she is "troubled but undeterred." The article later quotes MacGuineas: "For the longest time, nobody cared, nobody listened. ... It was 15 years of irrelevancy."

What planet is this article being reported from? Two years ago, when the Bowles-Simpson commission was sputtering to its inevitably ignominious conclusion, I wrote a post here commenting on the fake martyrdom that so many deficit scolds adopt. "We're so unpopular," they say. "No one wants to hear what we have to say, but what we have to say is just too important to the future of mankind for us to be polite any longer." In fact, one of the easiest jobs in the world must be going to work every morning with the mission of getting an audience in Washington while one talks about how important it is to shrink the government.

The Bowles-Simpson comparison here is hardly accidental. MacGuineas's groups include both Bowles and Simpson in various leadership roles. The NYT article also describes how easy it was to get Fix the Debt going. MacGuineas -- who is described simply as a DC lifer, with no actual qualifications to talk about budget issues, other than having talked about budget issues for various scold groups and insider organizations for fifteen years -- just happened to be able to get a bipartisan group of politicians together with some supposedly public-spirited CEO's, hoping to maybe raise a measly few million dollars to start yet another anti-deficit campaign. When the "impassioned feeling of a 'tent revival'" (in the words of host Democratic Senator Mark Warner) began to emerge, they raised $43 million. Life is tough for these Cassandras.

These are the same people who believe, notwithstanding all of the evidence that finally came into focus during the Presidential election campaign, that Rep. Paul Ryan is a deep thinker. And, by the standards of MacGuineas, Bowles, and Simpson, maybe he is. Their groups have given him awards for fiscal responsibility, even though they usually equate fiscal responsibility with deficit reduction, while his proposals would make deficits rise (because of huge tax cuts for the rich). Because of the clout of the scold groups, however, it remains important for people like Ryan to be treated as serious.

The heavily-financed and media savvy scolds are thus able to create an atmosphere in which, not even two weeks after being drubbed in the election, Ryan was described in an NYT news article as a "budget philosopher." The nonsense level is so ridiculously hyped that a philosophy lecturer who posed one of the Times's weekly "Invitation to a Dialogue" questions wrote that, at one point in American history, "what we had approximated, to put it in Representative Paul D. Ryan’s terms, was equality of opportunity, not equality of outcome." Wow. Ryan came up with the distinction between opportunity and outcome? He must be really old!

As this post demonstrates, it is difficult not to mock the pose of the deficit scolds. Still, this is anything but funny. The article on MacGuineas, in the section that apparently is meant to pass as objective journalism, allowed a critic of the scold organizations to point out that they are not really about reducing the deficit. They are, instead, about taking benefits away from elders, by cutting the social safety net. The reporter, unfortunately, quotes an email from an unknown advocacy group that is critical of Fix the Debt (helpfully quoting from that advocacy group's website that they are dedicated to "researching the 1 percent," in case any readers had been planning to take them seriously), who argues that the scold groups are trying to "pad[] their bottom line." The reporter is then able to quote a scold as angrily replying, "Nonsense. There isn’t an agenda except to get the deal done and the problem solved."

I do not, in fact, believe that most of the wealthy people and corporations supporting the scold organizations are in it for profit, at least as a primary matter. Still, quoting someone to that effect has the benefit of making all criticism seem illegitimate. Why, readers are led to wonder, are so many people so unwilling to see the brilliance of bipartisan solutions like Bowles-Simpson (or Simpson-Bowles)?

Indeed, that infamous "plan" is, and always has been, an obvious sham. Even so, as the brilliant Alex Pareene recently wrote on Salon, "Simpson-Bowles is Magic." No one knows what it says, but everyone is sure that all of our problems would be solved if only politicians would get behind it. Pareene's best moment comes when he points out that "reasonable old David Gergen" (a classic Fake Centrism-spouting conservative) recently "warned that Democrats are overreaching by asking for more than $1 trillion in new revenue, and invoking Simpson-Bowles yet again as an example of the Proper Way to do a Grand Bargain." Unfortunately for Gergen, "Simpson-Bowles includes more than $2 trillion in new revenue."

So we now find ourselves with a national press that takes this nonsense seriously. The $43 million budget for Fix the Debt is a drop in the bucket compared to the money that has been pouring into scold groups for years. Earlier this week, the Starbucks chairman managed to expose the inanity of it all when he tried to get his employees to write pro-scold, Fake Centrist messages on coffee cups, an idea that the Gawker website lampooned hilariously, noting that Fix the Debt "advocates for lower corporate tax rates and cuts to social services but refuses to take a stand on raising taxes on the rich."

This barrage makes it possible for privileged Washington insiders like Luke Russert (son of the late Tim Russert) to spout disgusting nonsense like this: "Both parties don’t want to tell the American people it’s time to drink their tough medicine." Because of the nonstop PR campaign that creates and nourishes Fake Centrism, this can be passed off as neutral analysis, not condescending cruelty. Do Americans really need to be told to take tough medicine, when so many cannot afford it?

Maybe things will be better in 2013. I certainly wish the best to all readers of Dorf on Law (and others, too).

Thursday, December 27, 2012

Today and tomorrow, I am publishing my final two Dorf on Law posts of 2012. Two years ago, in my final post of 2010, I asked which of the topics that I had written about during the year was the most important. Was it Social Security, government finances, health care reform, or something else? I ultimately concluded that the topic about which I had written the least -- veganism -- was the most important in terms of how much it matters to the quality of life in the world.

I continue to believe what I wrote back then. Even so, this year was a particularly interesting year for my more frequent analytical stomping grounds, with a few new issues thrown into the mix. For example, I only wrote about suppression of non-Republican votes once or twice, but it is a hugely important issue. The broader theme of lying and anti-social attitudes -- sociopathy -- on the part of many, many Republicans emerged as the campaign season proceeded. The ACA case provided some fascinating fodder. Naturally, government finances continued to dominate discussion during a year in which the people who claimed to be anti-deficit finally all but admitted that they were really simply anti-government all along.

Today and tomorrow, I will discuss the most important issue that has crystallized in 2012, and about which I have written with some frequency: the danger of "fake centrism." This topic could originally be captured under the rubric of "false equivalence," wherein reporters and commentators attempt to show their even-handedness by pairing every story about a Republican lie with a story about a Democratic one. As time has gone on, the effort to liken Democrats' garden-variety campaign exaggerations with Republicans' pathological lying has become more than a bit embarrassing -- although that never causes the "fair" reporters from stopping, or even noticing.

Fake Centrism is, however, beyond mere false equivalence. It is, if you will, false equivalence as a way of life. It has emerged especially strongly in the post-election period, when it has become extraordinarily important for Serious Washingtonians to show that they understand that the real solution to our problems is for all politicians to stop being so extreme, and to put aside their petty differences for the good of the country. This is sometimes accompanied by claims that the Democrats in Congress are becoming more liberal, while Republicans are becoming more conservative. That the first half of this story is crazy and blatantly false is never acknowledged (and, from the Serious People's standpoint, ultimately beside the point).

In tomorrow's post, I will discuss the particular damage being done by one of the major "deficit scold groups," as Paul Krugman correctly calls them. The remainder of this post is devoted to discussing the Fake Centrism concept more generally.

The fundamental problem with Fake Centrism is that it ignores the reality of today's Republican Party. The Tea Party movement was never really anything but a group of the most conservative Republicans, who succeeded in seizing the machinery of the party and either dumping the (highly conservative) establishment Republicans or intimidating them into abandoning all reason. Watching John McCain, Orrin Hatch, and -- although he had less distance to travel -- Mitch McConnell go from substantively 90-95% bad (but with a genuine dollop of honor) to shamelessly frothing hacks has been something to observe.

As I observed in one of my posts about the emergence of the Republican sociopaths, it is easy to imagine that there have been moments when a lot of non-crazy Republican leaders have sat in meeting rooms wondering what the heck is going on. A recent news article in The New York Times reports that the Tea Party's most extremely passionate activists have begun to veer off into fringe issues (such as claims that Democrats stole the election, and trying to "nullify" the ACA at the state level). Some Republican leaders offer some juicy quotes, such as a former New Hampshire Republican chairman complaining about the "tinfoil hat" issues that dominated the party in the last few years.

Even so, there is a continued insistence that this is all part of a big partisan balance. Interestingly, even when the claim is not that the current Democratic Party is as crazy on the left as Republicans are on the right, the claim must be that there have been other times when Democrats were that crazy. The Times reporter thus quotes the Republican President of Florida's state senate (hardly a fringe figure) claiming that "the Tea Party movement is to the Republicans in 2013 what the McGovernites were to the Democrats in 1971 and 1972."

I was just old enough (12 and 13) to be starting to pay attention to politics in those years, so my own faded memories of that time are hardly authoritative. A lot of subsequent study of the era, however, has confirmed that there is no doubt whatsoever that there is no comparison between the McGovernite wing of the Democrats then, and the Tea Party domination of the Republicans today. There was some antisocial radicalism at the time, tied to the anti-Vietnam War movement, but it was neither encouraged nor tolerated by Democrats in positions of power -- either the establishment or the reformers.

There is simply no period in modern history in which the Democrats, or any political group, exhibited the extremism that we are seeing from nearly the entire Republican Party today. When has anyone done anything that could be compared to the debt ceiling hostage-taking that the Republicans have engaged in for the past two years? When has any party said that it is essential to reward "producers" and punish "moochers" while defending increasingly extreme inequality and insisting on cutting nutritional supports for children?

As I noted above, however, the bigger problem is not the Tea Partiers and their Republican enablers. It is the Fake Centrism of those who pretend that there is a way for everyone to just grow up and get along. When one side has no interest in compromise or centrist ideas, this is nonsense. And that is where we are today.

Predictably, Thomas Friedman manages to grab onto this theme in the most absurd way possible. Friedman's NYT op-eds are so predictable that they have now been eerily replicated by a "Thomas Friedman Op-Ed Generator." (Readers should click the green "Generate New Column!" button to see how the generator manages to capture Friedman's trademark vacuousness with a mad-libs-like series of interchangeable names of politicians, countries, and cab drivers whose wisdom and experiences Friedman shares.) Choosing just one of his op-eds to mock is almost impossible, but his column from this past Sunday captures Fake Centrism in one of its purer forms.

Friedman begins by sharply attacking the Tea Party-led craziness among Republicans. But rather than making his usual move, claiming that the Democrats are currently just as crazy, or need to compromise more, he then lauds Bill Clinton and the Democratic Leadership Council (DLC) of the 1980's and 1990's. Why are they a good model for the Republicans? Because the DLC decided to "lead the party back to the center from a failing leftward course that
had resulted in it being repeatedly shut out of the presidency, except
after Watergate." It did not merely "pivot to the center in the general election. It fought for and educated the Democrat base" to support welfare reform and other business-friendly issues.

So, the story Friedman gives us is that the DLC saved the Democrats from themselves by "educating" people to like welfare reform? Actually, the DLC insisted on playing to the lowest common denominator on welfare issues, diminishing the debate rather than elevating it. Similarly, Clinton and Gore ran advertisements in the later stages of the campaign talking about how bad the Democratic Party was, saying that they were New Democrats who liked things like the death penalty. (I am not exaggerating.) If this is educating the base, then what is pandering?

The biggest missing piece here is the DLC's nonstop campaign to diminish the labor movement. It was not just that the DLC (which was founded and backed by business groups) was indifferent to organized labor. It was outright hostile to it. Not coincidentally, in 2011 and 2012, we not only have states like Ohio and Wisconsin openly ramming through anti-union measures for public employees, but we have Michigan -- Michigan -- becoming a so-called right-to-work state. This will hurt Democrats dearly in the near future, and the lack of support for organized labor (including Obama's missing-in-action act on the Wisconsin gubernatorial recall) is pure DLC. The Democratic Party continues to be the home for organized labor, but it is very much a one-way street.

But hey, if Democrats had lost the Presidency during those years, wages would have stagnated, workers' benefits would have been cut back, the distribution of income would have reached levels of inequality not seen since the Gilded Age, women's right to choose would have been continually under assault (and listlessly defended by Democrats), and poverty among children would have risen above 20%. It is a good thing that Democrats wisely turned their backs on that crazy Old Democratic Party and learned how to be excited by a Democratic President who continues to look for ways to give away the store on taxes, Social Security, and health care.

I promise to be a bit less sarcastic in Part 2 of this column, tomorrow. Or maybe not.

Wednesday, December 26, 2012

By Mike DorfMy new Verdict column is Part One of a two-part series that takes the pro-gun-control reaction to the Newtown massacre as an occasion to ask what kinds of gun control legislation would likely survive Second Amendment scrutiny by the Supreme Court. The short answer is that just about anything that has sufficient support to be enacted by Congress is likely to be upheld by the SCOTUS, but that's because it's hard to imagine national consensus building behind really serious gun control. Accordingly, I consider litigation involving state legislation in two gun-control-friendly states: New York and Illinois.

My column also asks the broader question of whether there is a Second Amendment right to possess firearms outside of the home. As I note in the column, shortly after the Heller case was decided, I wrote a symposium paper arguing that the doctrinal tools exist to argue that the Second Amendment does not apply outside of the home, and Darrell Miller followed that up with a much more elaborate and detailed version of the argument (to which Eugene Volokh forcefully objected). Here I want to make clear that I have little difficulty predicting what the Supreme Court, as currently configured, would do: The Court would say that the Second Amendment extends to public places, so that the Court would very likely affirm the Seventh Circuit's decision striking down the Illinois ban; whether it would permit the somewhat less restrictive New York law upheld by the Second Circuit is a closer question about which I won't speculate.

In any event, I want to distinguish predicting what a court will do based on knowledge of the druthers of the court's membership from applying the law using one's best judgment, all things considered. I've written at some length about that distinction but the basic idea should be clear enough to anyone who thinks about it. We might think that the Court will strike down the Illinois law because of any number of factors--especially the ideology of the Court's members--without also thinking that the existing legal materials could be said to fairly lead to this result. Prediction is a legal realist enterprise in which the legal materials enter into the process only insofar as one has reason to think that particular judges will be moved by those legal materials.

As a general matter, I think that legal materials count for a good deal at the Supreme Court, but hardly everything (as I discussed here). The Justices are part of the same weltanschauung as the rest of society, even though their views may lag or drift. Accordingly, it is quite possible to imagine that if there is a general shift in American public thought that would allow more gun control than it might have allowed just a few years ago, then even without a change in personnel, the Supreme Court would be inclined to permit greater regulation. I don't foresee a wholesale overruling of Heller--at least not without a change in personnel and maybe not even with such a change--but I find it relatively easy to imagine that just as the Court's conservatives have allowed the abortion right to be whittled away by regulations falling short of outright bans, so a more gun-control-friendly Court might allow the Heller right to be whittled away.

Let's consider a few possibilities:

(1) Minors. Abortion opponents have been very successful in paring down the abortion right by enacting restrictions on minors' access to abortion, typically laws requiring parental consent or notification. These laws are popular with pro-life voters who will support most abortion restrictions but they're also popular with nominally pro-choice centrist voters who figure that minors routinely must obtain parental consent for all sorts of less serious matters. Such voters often do not think through the reason why a minor might want an abortion without notifying or seeking consent from parents: fear that the parent(s) will abuse her if the parent(s) learn(s) that she has been having sex. Meanwhile, the courts have upheld such statutes so long as they contain a judicial bypass, but the procedures for getting such a bypass are humiliating at best.

Laws restricting access of minors to guns could easily follow the same model. For instance, many states have laws regulating how firearms are stored in households where minors reside. (Here is New Jersey's.) It is hard to see how gun rights groups could resist such laws, either in the political or the judicial domain, even though they make home protection via firearms impossible in many emergency situations. In Heller, Justice Scalia conjured an image of the homeowner reaching for a pistol in his nightstand to gun down an intruder. Gun control groups ought to be conjuring an image of a small child coming upon the same pistol and perhaps pushing for still-tighter restrictions on this basis.

(2) Funding. Early on, the SCOTUS held that while the government cannot forbid abortion, it need not fund abortion. The same is true of guns. E.g., if you want this, that or the other government benefit, you must certify that your home, workplace, automobile, etc., is gun-free.

(3) Waiting periods. The pro-life and gun-control movements have both hit upon this idea but the pro-life movement uses waiting periods more effectively to deny access to abortion by ensuring that a woman seeking an abortion from a distant provider must take off something like three days from work rather than one day. Waiting periods for gun purchases were originally designed to enable the government to check whether someone is legally qualified to own a gun, but now that computerization enables such matters to be determined instantly, I would look for waiting periods modeled on the abortion waiting periods. E.g., one must wait 24 hours after watching a film about the dangers of gun ownership to reflect on whether buying a gun is truly what one wants.

(4) Licensure, reporting requirements and petty harassment. Various and sundry of my Facebook friends have lately been posting information on how easy it is to buy a gun. Presumably they have in mind the worry that without additional hoops to jump through, the guns will end up in the wrong hands. That's fair enough, but it's also possible to make potential gun buyers jump through hoops simply to raise the cost (in time and money) of getting a gun. The pro-life movement has been very canny about this sort of thing because the courts have been reluctant to invalidate legislation on the ground that it is simply designed to make the right difficult to exercise. The same could be true of laws regulating guns.

In the nearly forty years since Roe v. Wade, we have seen that when the Court recognizes a right that some substantial subset of the People oppose, the right can be undermined very effectively, especially if there isn't a clear majority of Justices who unequivocally support the right. It would not be all that surprising if this pattern is repeated with respect to gun rights once at least one Justice who joined the majority in Heller and McDonald either comes to see the Second Amendment with greater ambivalence himself or is replaced with a Justice who feels such ambivalence.

Monday, December 24, 2012

Last Thursday, Professor Dorf wrote a very respectful (but quite clear-eyed) post discussing Robert Bork, in response to the announcement that the former judge and professor had died at the age of 85 the day before. Here, I will add a few thoughts, both about Bork's judicial philosophy and about the truly distorted picture of his non-confirmation that has emerged over the last 25 years.

On the latter point, one could not find a more perfectly distilled version of the "Bork as victim of a dishonest liberal cabal" lie than one penned by New York Times columnist Joe Nocera last year. Nocera's title says it all: "The Ugliness Started With Bork." No, it most definitely did not; and anyone who knows even the most basic facts about U.S. judicial history knows better. Fortunately, the Times ran an op-ed last week that laid out those facts, by Rutgers historian David Greenberg. As Greenberg reminds us, any "ugliness" in judicial nominations long preceded Bork.

Moreover, we must remember that what happened to Bork was actually quite beautiful: A fair process, during which people deeply engaged with the issues, after which they reached a difficult, honest conclusion. Bork's supporters can rue the result, but any claim that he was falsely represented or "slimed" is simply false.

It should hardly surprise us that the right-wing meme on Bork is wrong. Twisting the history serves the purposes of the hard right political movement, and if they can convince some centrist and liberal dupes to repeat the falsehood, they are obviously happy to do so. Nocera certainly played the role of dupe excitedly. Even though he often takes liberal positions on issues, he seems to have spent too much time sitting in an office near Thomas Friedman at The Times. Like Friedman, Nocera apparently feels the need to prove his "reasonableness" by frequently agreeing with Republican talking points on one issue or another. (Friedman's latest column, for its part, paired a short critique of Republicans's current dysfunction with a paean to the right turn that the Democrats took in the 1990's. I will write more about that later this week, unless other issues intervene.)

Beyond the faux-reasonable posturing, what was the substance (if any) of Nocera's criticism of the supposed liberal hit-job on Bork? He argued that Bork was very smart, and that he had sterling academic credentials. He then said that liberals knew that Bork might actually be confirmed by the Senate, so they had to attack him dishonestly. Nocera breathlessly wrote that a liberal advocacy group's "memo noted that, 'Like it or not, Bork falls (perhaps barely) at the borderline of
respectability.' It didn’t matter. He had to be portrayed 'as an extreme
ideological activist.' The ends were used to justify some truly
despicable means."

What Nocera failed to understand is that Bork was an extreme ideological activist. Nocera twisted that memorandum to make it sound as if the group was making up the part about Bork being an ideologue, which (Nocera insinuated) must have been false because they acknowledged that he was on the "borderline of respectability." There is, however, nothing inconsistent about being a right-wing nominee with borderline respectability and also being an extreme ideological activist. His near-respectability came from his academic credentials, and from everyone acknowledging that -- substantive views aside -- he was a very smart guy. No one ever said that he was a dope. What people like Nocera never acknowledge is that selective recitations of credentials is a complete dodge.

Plenty of people, after all, have excellent academic credentials but are ideologically extreme. Democrats would never have considered nominating, say, Duncan Kennedy to the Supreme Court. A law professor at Harvard, Kennedy was a driving force in one of the most important intellectual movements in legal scholarship of the 20th Century, Critical Legal Studies (CLS). Virtually no one would deny that he could pass the respectability test for a nomination, even if many people challenged the substance (and, more to the point, the real-world applicability) of CLS. Even so, Democrats generally thought of Kennedy as an ideological extremist, and they thus were content to leave him off their short lists.

Republicans, however, were in the process of pushing the boundaries of acceptability with their nominees. Rehnquist and Scalia had been confirmed with only minor and perfunctory opposition, and now the Reagan people thought that they could get the most extreme ideologue available onto the high court, too.

All of which brings us to the substance of Bork's views. Nocera mocked the late Senator Ted Kennedy's speech in which Kennedy said that Bork would give "women workers the choice between sterilization and their job," leaving readers with the impression that this was some made-up fantasy from the liberal cabal. In fact, this was based on an actual judicial opinion that Bork had written in his short time as a federal judge -- a decision that Bork had then blithely defended in his hearings by saying that the women who had "chosen" to be sterilized must have decided that they wanted to work more than they wanted to have children. People, including many Senators, were understandably shocked.

Bork's views were so extreme, moreover, that this example was hardly a matter of tracking down a hidden nugget of insanity. Bork's long-held views on states' rights were a matter of serious concern during the hearings. Bork strongly asserted his view that the federal courts had illegitimately created the "one person, one vote" standard in the Constitution. Bork said that states could, for example, set up legislative districts on the basis of how many rocks were in a geographic region, and that doing so would be no more constitutionally problematic than basing those districts on how many people lived there. Bork was, in fact, the extreme ideologue who is most directly associated with the turn in conservative jurisprudence that has led to the federal courts' continuing refusal to do anything about redistricting and other abuses of the electoral system. In short, Bork's version of jurisprudence said that democracy is not a core value of the Constitution. That might have been academically interesting, but it was (and mostly still is, thankfully) undeniably extreme.

What makes the Nocera approach -- the "Let's admit that our liberal friends were unfair to Bork" view of moderation -- especially absurd is that all of Bork's views were fully explored in open hearings. Fellow academics testified on both sides, with Cass Sunstein's testimony being an especially powerful statement of how extreme Bork's views were. Most importantly, the late Senator Arlen Specter directly engaged Bork on all of those issues. Bork responded, and the Senate decided that it was just too much to take. Bork lost on the merits, not on the basis of some memos from some political activists and one speech by Ted Kennedy.

The bottom line is that a lot of smart people should never serve on the Supreme Court. Bork was one of them. Pretending that he was the victim of some unfair process is simply to deny history. I do hope that he rests in peace, but I am certain that he received justice during his confirmation process in this life.

Friday, December 21, 2012

By Mike Dorf
As Professor Buchanan indicated in his post earlier today, our new debt ceiling paper has now been published in the online edition of the Columbia Law Review ("Sidebar"). It's a short paper (by law journal standards), so I'll let it speak for itself. I will simply add that we wrote it last week, fully expecting that we would have to make substantial revisions on the fly when President Obama offered the Republicans a sweet deal (from what should have been their perspective). We then watched in amazement this week as the deal was rejected. For more on that point, I recommend Professor Hockett's treatment just below this post.

By Robert Hockett Many of our more cultivated readers, particularly the cinephiles among them, might be at least passingly familiar with
Ed Wood’s 1959 anti-classic, Plan 9 from Outer Space.
Designated ‘the worst movie ever made’ by the redoubtable Medved
brothers, the film’s science-fiction-meets-horror-story plot involves a plan by
extraterrestrials to plague earth-dwellers with zombies, whom (which?) they
resurrect by stimulating the pituitary and pineal glands of corpses, all in
order to distract the earthlings from constructing a world-imperiling doomsday
weapon. Among other inspiredly camp curiosities, the film
posthumously stars Bela Lugosi – known in the film as ‘the Old Man’ – in the
form of film clips that Wood had shot of Lugosi for other purposes prior to his
death.

Shift now to a parallel universe not that far from the world of
Plan 9, in which what transpires is not the worst movie ever made, but surely
the worst legislative story ever told. Yes, I speak of Washington,
DC, where I am located while on sabbatic this year and where all of the talk in
the past several days has been of another plan involving the walking dead and
conceived by agents who seem to inhabit another planet, or at any rate another
era – perhaps that of Herbert Hoover. I speak of John Boehner’s ‘Plan B.’

Plan B, not to be confused with the abortifacient (though
it was indeed meant to prevent something happening that might otherwise
happen), was purportedly conceived to avert that ersatz doomsday known as
the 'fiscal cliff.' In fact, however, it was meant to do something else. Plan
B would have permitted the disastrous Bush-era tax cuts, set to expire as of 31 December, to
expire only for increments of income over $ 1 million, while converting the
remainder to permanent status. Since President Obama had campaigned on a figure
of $250K, and in post-electoral compromise mode gone no higher than $400K,
Boehner apparently believed that proposing and passing Plan B would enable
Congressional Republicans to embarrass the President by first 'doing something
constructive' to avert ersatz doomsday and then being
rebuffed by a new putative 'party of "no"' - Mr. Obama's
Democrats.

As strategies go, Plan B was of course characteristically
(for Republicans) gamey and bad faith in character - unlike Plan 9 of the
extraterrestrials, who were at least trying to save us from ourselves. The bad
faith is manifest when one considers Plan B against the background fact that the
President and the Democrats could have offered ahead of time their own Plan A,
conceived before the election, to do precisely what Plan B did save with a lower
threshold for tax cut expiry - either the President's campaign promise of $250K
or his recent compromise to $400K.

The original rendition of that Plan - what I am calling
'Plan A' - was to employ it as a fallback after New Year's in the event that
ersatz-fiscal-doomsday-averting compromise was not reached by 31 December.
Holding it in reserve in that way demonstrated the good faith willingness of the
Dems to seek compromise before resorting to use of the lever afforded by the
Bush tax cuts' sunset clause. Republican gun-jumping on Plan B would
accordingly have constituted a cheap cheat - had they passed it in the House as
Boehner attempted.

As it happens, however, Plan B proved ultimately to be
more saliently science-fiction bizarro than dastardly. For Mr. Boehner's fellow
Republicans, true to contemporary form, ultimately proved unwilling to
relinquish their 'party of no' title to the Democrats. They rejected Mr.
Boehner's Plan B and the opportunity it offered potentially to embarrass the
President and the Democrats, apparently because it allowed the expiry of any of
the Bush tax cuts at all - even for increments of income over $1 million. And
so we are just about back where we were, with ersatz doomsday looming and the
Democrats ready to nullify the effects of that day by passing new tax cuts for
non-plutocrats the very day after.

What is most campily comical about all of this, rendering
it fit fodder for cornball science-fiction-cum-monster-movie or farce, is that
the Republican rejection of Republican Plan B now offers the public a lovely
holiday gift - namely, a President newly able to stick to his own principles and
promises as issued throughout the 2012 campaign. For why offer
to compromise the tax rise on income increments over $250K by raising
the amount - even merely to $400K - once Republicans have shown that they will
accept literally no expiration short of full expiration? The
answer is that they should not. Democrats should simply proceed with Plan A, as
they have planned all along absent compromise by Republicans.

Let all of the Bush tax cuts expire, then, and then
immediately introduce legislation to trim taxes again for those who will use the
savings to boost still badly needed consumer expenditure rather than to engage in more
volatility-inducing financial speculation. Meanwhile the planet will continue
in its elliptical orbit about the sun, and the zombies will keep losing
elections.

In my new Verdict column this week, I take aim at the astonishing gift basket that President Obama offered to the Republicans earlier this week. I then point out that, once again, the Republicans came to the country's rescue -- in their weird way -- by refusing to take "yes" for an answer. Actually, Obama did not merely say "yes." What he basically said was: "I know I'm in a great negotiating position right now. But will you please let me give you almost everything that the majority of the country just rejected in the election, anyway?" Bruce Bartlett quotes me in his new column for The Fiscal Times today, where he extends the case for Obama as center-right Republican-in-everything-but-name. (OK, that is a bit of an exaggeration, but not much -- at least on economic issues.)

Even so, Speaker Boehner did say no, because he is in thrall to the crazies who have taken over his party. (Which is not to say that Boehner is anything like a centrist. He is just not the craziest guy in the room.) Or, as Gail Collins so memorably put it yesterday, Boehner is playing "a game in which [he] needs to go into a back room before he makes
his bet and get the approval of a herd of rabid ferrets." And people thought I was being harsh when I called the Republican leaders sociopaths! (To be clear, Collins simply found a memorably colorful way to describe the chaos among the House Republicans. My conclusions, by contrast, are anything but playful. They are, instead, drawn from clinical definitions of sociopathy, as applied to many Republican leaders' actual statements and behavior.)

So where do we stand now? The apparent Republican strategy is literally to pack up and go home. There is no deal on taxes, spending, or anything else, but Boehner could not even get his own members to vote on an entirely symbolic measure designed to try to shift the blame for the coming tax increases onto the White House. What does the herd of rabid ferrets plan to do next? Evidently, they are going to put all of their chips on a stand over the debt ceiling. They continue to believe that their negotiating position in February will be so strong that they can bring Obama even further to the right, by threatening not to increase the debt ceiling sufficiently to accommodate the continuing budget resolution that they passed earlier this Fall.

The new column that Professor Dorf and I wrote for Columbia Law Review's Sidebar is now available on their website. There, we extend our arguments from our longer article in CLR's October 2012 issue. We try to imagine what the White House is thinking in not only rejecting the argument based on Section 4 of the 14th Amendment, but in not even acknowledging that there is a constitutional issue involved with the "trilemma" that we have identified. We find ourselves concluding, in part based on two key Supreme Court cases (Train and Clinton), that the case for issuing debt in excess of the ceiling is even stronger than we thought it was when we wrote our original article.

Which leaves us with the big question: Did Obama learn nothing from the debt ceiling fiasco in July-August 2011? In one way, he certainly does seem to have learned a big lesson. Even though he has loudly ruled out the 14th Amendment argument, he has said on multiple occasions that he is simply not going to play the debt ceiling game with Republicans again, no matter what. Jared Bernstein, the former chief economist for Vice President Biden, recently noted in a blog post that the President is saying pretty definitive-sounding things about refusing to be blackmailed by the ceiling-wielding herd of rabid ferrets. For example, earlier this week Obama said:

"So I’ve put forward a very clear principle. I will not negotiate around
the debt ceiling. You know, we’re not going to play the same game that
we saw happen — saw happen in 2011, which was hugely destructive. ... So we’re not going to do that. ... But I will not negotiate around the debt ceiling. We’re not going to do that again."

Sounds good, but what (if anything) is behind the tough talk? Bernstein thinks Obama is simply going to ignore the debt ceiling, when push comes to shove. "When it comes to the debt ceiling you either a) negotiate with
terrorists or b) you don’t. If it’s ‘a’ then I don’t understand either,
but I take the President at his word that it’s ‘b.’" Bernstein then describes the "horrible scrum" that would happen after Obama issues debt in excess of the ceiling.

I had a brief email exchange with Bruce Bartlett, who forwarded the Bernstein post to me. The question is: Why does Bernstein think that the President is going for "option b)" (don't negotiate with terrorists), when Obama is already giving away the store -- even from a position of strength -- and when he has not even shown an awareness of the constitutional principles on which he might rely, during a debt ceiling standoff?

Neither Bartlett nor I could come up with a good answer. On the other hand, Bernstein is both smart and very well connected to Democratic circles. Is it possible that the President is planning to do what we and others have been advocating? Although I would obviously be delighted if I thought that the White House was actually planning to follow what we view as his constitutional imperatives, it strikes me that it is a very bad strategy to pretend now that he has no such plans.

If the Republicans really do refuse to raise the debt ceiling -- and some of them have simply said that they will not do so EVER, no matter what they can extract, while others have simply set a price too high to contemplate (essentially, turning back the clock by about 80 years on American governance) -- the central issue in issuing additional debt is whether the financial markets will buy it. That is, will lenders continue to offer their funds to the government at anything remotely resembling affordable rates?

To make the markets as comfortable as possible, it will be necessary to educate them in advance. Explaining that it will be impossible to track and separate "unconstitutional debt" from "real debt" (which would continue to be issued, because on some days room will open under the ceiling, as my tax professor colleague Ted Seto pointed out in private correspondence recently) will take some time. Talking through the process by which -- post-crisis -- all debt would be validated with the full faith and credit of the United States is not obvious. It would require, if possible, weeks or months of explaining to the financial markets that there is a way to minimize the harm from the Republicans' obstinacy. The big names on Wall Street would have to start a conversation in which they said, yes, as bad as this is, it is the only way forward.

In the meantime, of course, markets will become volatile, in anticipation of this bad possibility. It could lead to a full-on panic, but the still-hypothetical nature of the "unconstitutional debt" would most likely allow people to believe that the worst need not happen.

And it is least likely to happen if the Republicans come to believe that there is nothing to be gained, and everything to be lost, from pushing the country into that crisis. Once they have gone through a few weeks of screaming about impeaching the President, only to be told that they would be impeaching him for committing one of the three impeachable offenses to which they limited him -- to say nothing of the realization that there is no way the President would be convicted and removed by the Senate -- the ferret herd would know that they cannot force spending cuts by refusing to increase the debt ceiling. (They will just have to go back to shutting down the government during the regular budgeting process.)

They might still refuse to do the right thing, but announcing his strategy in advance would give the President the ability to maximize the chance that they will see the pointlessness of their current plans. The process will certainly be ugly, but much less ugly than having the President suddenly announce that the Constitution requires him to issue more debt.

In short, I do not see what Bernstein sees. Whereas he predicts that the President will, when push comes to shove, back up his tough talk with the necessary decision to issue debt, I see the White House blowing smoke. And even if Bernstein is right, it would mean that the Obama team will have followed the most destabilizing path to choosing the least unconstitutional option.

Wednesday, December 19, 2012

By Mike Dorf
The news came today that Robert Bork passed away. Consider this an affectionate if quixotic eulogy from one who thought Bork was wrong about nearly everything.

Looking back on Bork's long career, there is much with which to find fault. He opposed what became the 1964 Civil Rights Act, even saying it was based on a principle of "unsurpassed ugliness." When others refused, Bork fired Archibald Cox to execute the Saturday Night Massacre. His early work in antitrust law played an important role in extinguishing the portion of that body of law that focused on political economy, thus helping to pave the way for the WalMartification of America.

In all of these and other matters, Bork displayed a tone-deafness for the struggles of the oppressed, but--and here is the tribute--I believe that it all came from a set of principles rather than any meanness of spirit. I only met Bork once, nearly 16 years ago, when Ted Koppel pitted us against one another on Nightline to debate a then-pending Supreme Court case. On-camera we had a spirited discussion and off-camera Bork was friendly and engaging. My friends who knew him well, including one who clerked for him and others who were his colleagues at Yale, uniformly spoke highly of him personally. To the extent that Bork has become a bogeyman for liberals, it should only be because we strongly disagree with the values he championed, not because of any character flaw.

Rather than rehash the debates in which Bork engaged, in the balance of this post I'd like to point to a few of the many ways that he shaped the legal landscape we see today.

I have already mentioned Bork's views about antitrust but it's worth elaborating the point. Prior to the publication of Bork's The Antitrust Paradox, economic efficiency was only one value the Sherman and Clayton Acts were thought to serve. Bork argued that bigness per se is not undesirable. Monopolization is only problematic, he argued, when it enabled monopolists to charge monopoly prices. In law, that view has triumphed over the Brandeisian progressive alternative almost completely, even as politicians continue to pay lip service to "small business."

The Senate's rejection of Bork's nomination to the Supreme Court has had important ramifications along three dimensions.

1) Most directly, it led to Justice Anthony Kennedy's tenure on the Court (after the brief distraction of the nomination-then-withdrawal of Judge Douglas Ginsburg). Kennedy has been considerably more liberal than Bork would likely have been on abortion, the death penalty, free speech, gay rights, and probably quite a few other subjects. It is impossible to know all of the ways in which history would have unfolded differently if Bork rather than Kennedy had sat on the Court for the last quarter of a century, but the differences would certainly have been substantial.

2) Bork's failed nomination had an important impact on the nomination process itself. No nominee since Bork has been as forthcoming about his or her views as Bork was. Meanwhile, presidents of both parties have generally sought confirmable justices, which means a number of things. At the most trivial level, it's now considered useful to have someone who will look good on tv. (John Roberts is the model here.) More substantively, presidents seek someone without a potentially damaging paper trail. Notably, three of the last four Democratic nominees were law professors for substantial portions of their careers, but they wrote about subjects that the public would deem boring: civil procedure (Ginsburg); administrative law (Breyer); and executive power (Kagan). Kagan was the most vulnerable but because she became a dean so early in her career, she wasn't very vulnerable, with only a modest paper trail--and she performed so well that it didn't matter. Meanwhile, both Democrats and Republicans have sought appeals court judges whose records would be largely boring as well. Alito and Sotomayor are the best examples here. Souter, Roberts and Thomas were appeals court judges only very briefly but that still meant that they came before the Senate "pre-vetted"--a process that has worked reasonably well, except in the case of Thomas, when it didn't work at all. Overall, I think pretty well of the current Court but I also think that as a result of the Bork experience, it is an intellectually bland Court. Notably, the most interesting Justice--Scalia--is also the only member who joined the Court before the Bork hearings.

3) To a degree that I think is not sufficiently appreciated among academics, Bork's confirmation hearing gave rise to what is sometimes called "new originalism"--the notion that the goal of originalist judging is not all that different from living Constitutionalism. Writing in the New York Review of Books shortly after the Bork hearing (in an essay later republished as a book chapter), Ronald Dworkin astutely observed that the intellectual move that Bork employed to show that his methodology would have allowed the right result in Brown v. Board of Education, would do so only by sacrificing what was previously thought to be a key feature of originalism: its claim to be constrained by history. Bork--in both his confirmation hearing and in The Tempting of America, which he wrote shortly thereafter--defined the original understanding of equal protection at such a high level of generality as to accommodate Brown.

Both the originalist "move" and the critique have been followed more or less since then: New originalists define original understanding broadly to show that originalism is not so scary, but then critics note how many of these new originalists then turn around and invoke a narrower form of originalism when it suits them. Peter Smith and Tom Colby have made this point generally; I made it about Steven Calabresi not that long ago; Dworkin beat us all to the punch with respect to Bork. Indeed, Dworkin himself was simply piling on to the critics who had already accused Bork of a "confirmation conversion."

My point here isn't so much that Bork manipulated original understanding or even that the original understanding is inherently manipulable. My point is simply that the aspect of the Bork hearings that was--from a theoretical perspective--most interesting, captured much of what we constitutional theorists would spend the next quarter century arguing about. There have been variations, sure. E.g., some of the contemporary new originalists appear to have less of an ideological ax to grind than Bork did. But the basic moves were set in those late summer 1987 days when Arlen Specter went toe-to-toe with Robert Bork on questions of constitutional interpretation on national television. May they both rest in peace.

On Justia's Verdict today appears the second part of my two-part series of columns on the question whether rapists ought to have parental rights to visitation with their biological children resulting from rape. In this second column, I consider the issue of burdens of proof in determining whether a father did in fact conceive his biological child in rape, on the assumption that an affirmative finding should yield divestment of any parental entitlements.

In this post, I want to consider the relationship between causation and responsibility, a relationship on which the denial of parental rights to rapist fathers of children conceived in rape is largely predicated This issue of causation is on my mind because of the gun-rights/gun-control exchanges that have occurred in the wake of the tragic killing of twenty children and seven adults in Newtown, Connecticut last Friday. Gun-control advocates have argued that the slaughter ought to move us finally to pass serious gun-control legislation, while some gun-rights enthusiasts have suggested either that gun control would not protect innocent people or that greater access to lawful gun ownership might have saved lives on Friday. Both sides of the gun-control/gun-rights debate have understandably viewed the causation question as crucial: was the shooting on Friday the result of our current gun laws, or wasn't it?

When we ask what caused the shooting on Friday, we can, of course, identify many answers. First, there is the gunman himself, though it may seem less relevant to scrutinize his moral responsibility after he took his own life after murdering twenty-seven people. Still, there are some who want to dwell on the mental state of the shooter, because this focus might yield gun regulations that highlight the mental health status of the person who seeks to purchase firearms. As of this writing, we know very little about the motives and mental state of the shooter, but some people have reportedly suggested that he might have suffered from Asperger's Syndrome (AS), a condition that appears on the high-functioning end of the autism spectrum. To my knowledge, AS is not ordinarily linked to violence, but it is quite easy to lump together anyone whose brain deviates in some way from the ordinary, particularly if one wishes to avoid limiting general access to firearms and instead to burden only those who have some demonstrated history of mental disorders. Less charitably, one could characterize the rush to marginalize people who share the shooter's diagnosis as basic scapegoating.

A second answer to the causation question, once we look beyond (or take as given) the behavior of the particular gunman is some combination of the law and culture of gun possession. The law at the moment is relatively lax, and the guns that Adam Lanza used to kill his victims and himself were reportedly owned legally and registered to the shooter's mother, Nancy Lanza, one of the people to die at his hands on Friday. At the same time, however, there is a culture of gun possession that also might have led Nancy Lanza to purchase weapons rather than -- say -- take up golf, swimming, roller-blading, or volunteering at a homeless shelter.

The National Rifle Association (NRA) has assertively encouraged people to exercise their alleged right to own all manner of firearms, probably in part because the fewer people who choose to exercise that "right," the fewer people will become active in defending that right against political efforts to reduce its potency. Interestingly, this offers a contrast to the right to abortion, because those who advocate for abortion rights are generally as committed to ensuring that women have the right to decide to keep their babies and take their pregnancies to term. While pro-choice advocates are typically not pro-abortion (in the sense of favoring abortion over childbirth), pro-gun advocates appear to be affirmatively pro-gun-ownership.

A third answer, given by some Republicans, to the causation question is that if school teachers were legally entitled to -- and culturally inclined to -- carry firearms, then one of the teachers at site of the massacre on Friday might have been able to defend the children effectively by killing the perpetrator before he was able to gun down so many victims. Proponents of gun control have responded to this claim that in emergency situations, non-violent law-abiding citizens are likely to become confused and use lethal force against the wrong targets (or have their weapons confiscated and used against them by their intended target). I imagine that gun control opponents might respond that gun owners ought to practice their skills regularly and thereby avoid such novice errors.

It is natural to ask, after such a tragedy, how things could have gone differently. And if there is a straightforward answer, such as "things could have gone very differently if Adam Lanza had not had access to weapons that inflict so many fatalities so quickly," it seems most sensible to change the law to reflect that assessment of what might have been.

My preference in the "causation debates" would be to enact gun control that would keep automatic and semi-automatic weapons out of the hands of civilians, no matter what their mental health status. For reasons I discuss here, I regard the selection of "dangerous" people based on their mental health diagnosis or treatment as discriminatory and as offering only an illusory sense of security.

In the case of the rapist who seeks visitation with the child of his violence against the child's mother, the causation inquiry is very straightforward. If the man had not raped the woman, then the child with whom he seeks visitation would not exist. Accordingly, whatever "credit" he gets for being the father necessarily carries with it the blame associated with the sexual assault. His relationship with the child and with the child's mother is accordingly one of culpable aggressor whose actions should entitle him to nothing. The simplicity of the causal connection in such cases may be why barring rapists from visitation with the children of their rapes likely occasions little or no controversy.

When it comes to mass shootings, by contrast, people with a political agenda may see the causal relationships through the lens of their own legal and cultural subjectivity. That may be why former Arkansas Governor Mike Huckabee reportedly offered this unusual causal account of the shooting, with which I shall leave the reader:

“Well, you know, it's an interesting thing,” Huckabee said on Fox News. “We ask why there is violence in our schools, but we've systematically removed God from our schools. Should we be so surprised that schools have become a place for carnage because we've made it a place where we don't want to talk about eternity, life, responsibility, accountability? That we're not just going to have to be accountable to the police, if they catch us. But one day, we will stand in judgment before God. If we don't believe that, we don't fear that.”

Tuesday, December 18, 2012

By Mike Dorf
[Warning, Spoiler Alert: This post discusses the new Tom Wolfe novel Back to Blood. If you haven't read the novel but plan to do so, I won't be spoiling the whole experience for you, but I do discuss one aspect of one of the plot lines.]

As a longtime fan of Tom Wolfe's fiction, I nonetheless readily acknowledge the shortcomings in his work, including what I regard as the three most serious: (1) Wolfe trades in crude stereotyping in painting all of his characters; (2) his female characters ring false, as though written by an adolescent boy who has had little contact with actual adult women, rather than a man of letters now in his eighties; and (3) his reactionary sensibility enables him to astutely highlight the naivete about human nature of a certain brand of progressivism without ever coming to grips with the noble instincts that underlie it. But as a reader I have also tended to overlook these flaws because Wolfe is such a wonderful writer. He paints vivid, memorable scenes that ring true in broad outline, even as they exaggerate and distort numerous details. Wolfe's latest book, Back to Blood, displays his virtues and vices every bit as fully as his other major works over the last three decades: Bonfire of the Vanities; A Man in Full; and I Am Charlotte Simmons.

Thomas Mallon's review in the NY Times nicely captures my own view of Wolfe in general and Back to Blood in particular--displaying a warts-and-all admiration for Wolfe's panoramic novels. At the same time, I don't really disagree with most of the criticism leveled by James Wood in his much-more-critical review in The New Yorker. No doubt, those of my readers who read fiction will have their own views and I don't feel any need here to explain why I end up closer to Mallon than to Wood. It's ultimately just a matter of taste, I suppose.

I do want to explore a theme that Mallon's review opens up. Near the end of his review, Mallon argues that even as Wolfe draws an unsympathetic portrait of the status-obsession of one of his characters, Wolfe himself, in writing book after book about the ways in which Americans compete over status, displays that very status-obsession. Mallon strikes me as clearly right here, as verified by Wolfe's unfortunate and public tiff with Norman Mailer, John Updike and John Irving over their respective places in the pantheon of contemporary American fiction writers a little over a decade ago. And just as Wolfe celebrates status obsession in the guise of criticizing status obsession, so Back to Blood celebrates the pornographication of American culture in the guise of criticizing it.

Actually, there is another layer of irony. The Back to Blood character Dr. Norman Lewis is a psychiatrist who treats patients suffering from "pornography addiction," a condition that Lewis says is not in fact an addiction. Lewis's own behavior, along with the internal musings of his girlfriend, make clear that Lewis's ostensible fascination with his patients' pathological obsession with pornography is in fact a mask for Lewis's own pathological obsession with pornography itself. In the guise of condemning nonstop porn consumption by others (including but not limited to his patients), Lewis engages in nonstop porn consumption (except when he's trying to impress people). But of course Back to Blood itself describes--in great detail--the pornography that Lewis consumes under cover of studying its consumption by others. And so as a result, Wolfe and readers of Back to Blood end up consuming porn under the guise of condemning Lewis for consuming porn under the guise of condemning his patients and others for their consumption of porn.

Lest the reader think that I'm now engaging in the same thing, only at one further remove, I want to be clear that I'm not. I won't describe any of what appears in the book. But with that disclaimer out of the way, I do want to raise the question of whether it is possible to condemn an observatory practice without participating in it. By an "observatory" practice I mean some act of watching/listening to/reading about/etc. rather than directly doing. Thus, viewing pornographic or violent movies is an observatory practice.

Something like this problem confronted the Supreme Court in the days before Miller v. California. Under the pre-Miller case law, the question of whether material was obscene--and therefore constitutionally proscribable--could only be determined by a fact-intensive inquiry. As a consequence, in those days the Justices regularly watched allegedly obscene movies in the Court basement to determine whether they were legally obscene. But this put them in a bind. Unlike child pornography--which is criminalized mostly based on concerns for the children exploited in its production--or feminist efforts to regulate pornography--which are premised on the notion that pornography degrades women--the premise of obscenity regulation is that viewing obscenity is immoral (or at least degrading) in itself. Thus, in the cases in which the Court found that the film it had watched was legally obscene, the Justices who reached that conclusion were, ipso facto, admitting that they had debased themselves.

Hence, according to a widely told story, one basis for incorporation of "community standards" into the Miller test was a wish by the Justices to cancel "dirty movie night." If the question of whether a film is obscene depends on community standards, then it has to be decided by local juries, not by the nine Justices in Washington. But Miller didn't make the problem of participation in obscenity go away. It simply relocated it from the Supreme Court in Washington to juries around the country.

Is there a way out of this bind? The Court could have adopted the view of Justices Hugo Black and William O. Douglas. As (more or less) free speech absolutists, they did not think that the government had any power to ban obscenity, and thus they never went to dirty movie night at the Court--instead simply voting to reverse obscenity convictions. If obscenity were to disappear as a proscribable category, then the government would never put a juror in the position of having to decide that the viewing of some film he or she had just been made to view is immoral. But until that happens, jurors will be placed in an awkward position whenever the government attempts to prove obscenity in a criminal case (and despite the abolition of the federal Obscenity Prosecution Task Force last year, obscenity prosecutions still occur).

Sunday, December 16, 2012

This morning, I am on my way to Belize, where my eleven
year-old daughter and I will participate in Mayan rituals harkening the end of
the world.

As I fly through the clouds, I’m exquisitely aware that, for
numerous parents in Newtown, Connecticut, today is really the end of the
world. Unlike mine, their children are
not sitting safely beside them, begging to watch one more show on Direct TV,
chewing gum to keep their ears from popping painfully.

Instead, the popping their children heard in their ears this
morning was that of gunfire; the pain they felt was that of bullets penetrating
their skin.

I’m trying hard to understand just how that could be, on all
kinds of levels.

Why these particular children, in this particular town, at
this particular school, on this particular day?
Why not my own children, who attend a school much like the one in
Newtown? Why any children at all?

When I was six months pregnant with my first daughter, I
attended a Senate subcommittee hearing on domestic terrorism as part of some
research for a book I was writing. As
the Senators droned on, I took dozens of notes, not because I needed them but
because the room was hot, the hearing was boring, and I was hugely pregnant – I
needed to keep myself awake. But all of
that changed when, almost imperceptibly, an aide walked up to the bench where
the Senators were sitting and slipped the committee chair a note.

Suddenly, everything stopped. The Senators began whispering to each
other. In these early days of the
internet, before most people carried cell phones, when even the mobile phones
that existed were far from smart, the spectators turned to each other and
raised their eyebrows. No one knew what
was going on, but it was clear that it was something big. It took a few moments before the chair
cleared his throat and told us.

The “something big” was Columbine.

As a mother – not even yet a mother – I would never see the
world the same way again. I honestly
asked myself that day, in that boiling hot subcommittee room, whether I was doing
the right thing, bringing a child into this world. I comforted myself, though, with denial. Nothing like this could ever happen again, I
was sure. The very Senators who sat
before me, who cared about domestic terrorism, who represented parents with
little children and even had little children of their own, would see to that.

Thirteen years later, the horror of that subcommittee
hearing plays in my consciousness every time another school shooting hits the
news. These days, we get the news on our
phones, even as the terror plays out (today, I learned of the Newtown shootings
while changing planes in Houston, as I sat on a runway waiting to taxi into the
terminal). And still, each time, we seem
to be in denial. Over and over again,
Facebook friends post about how unbelievable the news is, how incredible that
something like this could happen, how close they will hold their own children.

But is hard to understand why it is still so
unbelievable. It is far from
incredible. In fact, I’d wager that the
parents of these slain children in Newtown posted about their disbelief just a
few months ago, when a movie theater in Aurora exploded in the night, or
earlier this week, when a shopping mall in Oregon echoed with gunshots. I’ll bet that they held their children close,
just as I hugged my belly when the news of Columbine filled that subcommittee
room.

And yet, today, as I fly to Belize, I stare at my daughter
even as I type these sentences. I look
into the heavens and thank the stars above that she is sitting beside me,
chomping on her gum and doing her math homework. I even consider letting her
buy a show on Direct TV.

Friday, December 14, 2012

Last week, the New York Civil Liberties Union filed a lawsuit challenging the state of New York’s routinized use of solitary confinement and other forms of extreme isolation in its prison system as violating the Eighth Amendment. According to the complaint, which draws from a report that the organization published earlier this year, New York uses extreme isolation as an administrative sanction more extensively than any other prison system in the country. From 2007 to 2011, the state imposed over 68,000 extreme isolation sentences for violations of prison rules, and on any given day, it holds approximately 4,500 individuals – constituting fully 8 percent of its total prison population – in its “Special Housing Unit” isolation cells.

As the NYCLU recounts, the circumstances and consequences of such extreme forms of confinement are exceptionally severe:

Every day, nearly 4,500 prisoners across New York live in extreme isolation, deprived of all meaningful human interaction or mental stimulation, confined to the small, barren cells where they spend 23 hours a day. Disembodied hands deliver meals through a slot in the cell door. “Recreation” offers no respite: An hour, alone, in an empty, outdoor pen, no larger than the cell, enclosed by high concrete walls or thick metal grates. No activities, programs or classes break up the day. No phone calls are allowed. Few personal possessions are permitted. These prisoners languish in isolation for days, weeks, months and even years on end.

* * *

Extreme isolation harms prisoners and corrections staff. . . . The emotional and psychological harm prisoners experience in extreme isolation is compounded by the formal and informal deprivation of basic necessities, including food, exercise and basic hygiene. Prisoners buckling under the emotional and psychological weight of isolation and deprivation often lack access to adequate medical and mental health care. For corrections staff, working in extreme isolation has lasting negative consequences that affect their lives at work and home.

* * *

Extreme isolation negatively impacts prison and community safety. People in extreme isolation find its psychological effects fuel unpredictable and sometimes violent outbursts. . . . Prisoners carry the effects of extreme isolation back into the general prison population. They also carry them home. Nearly 2,000 people in New York are released directly from extreme isolation to the streets each year. [link]

Prison rules confer broad discretion upon corrections staff to determine which disciplinary infractions warrant extreme isolation as a sanction, with limited independent oversight or procedural protections for individuals charged with violations. The NYCLU’s investigation reveals the extensive, arbitrary use of extreme isolation to punish a sweeping array of minor rules violations, including “smoking in an undesignated area,” “wasting food,” “littering,” and “untidy cell or person.” Far from confining its use to short periods of confinement for truly exceptional circumstances, New York officials have instead relied upon extreme isolation “as a disciplinary tool of first resort for violating almost any prison rule, no matter how minor” – and in many cases, for prolonged and indefinite periods extending for months and even years. Even the Commissioner of New York’s Department of Corrections and Community Supervision, Brian Fischer, has publicly acknowledged that the state’s prison system “overuse[s]” extreme isolation.

* *

New York, of course, is hardly alone within the United States in its widespread use of excessive isolation. Conservative estimates indicate that tens of thousands of individuals nationwide – along a continuum ranging from short-term disciplinary segregation in isolation cells for days or weeks to long-term confinement under circumstances of extreme sensory deprivation in dedicated “supermax” facilities – are confined at any given time under circumstances of extreme isolation, which has become a central instrument in the criminal justice system’s strategy of “exclusion and control.” Indeed, Sharon Dolovich goes further to suggest that the logic of supermax might be “critical to the success of the entire carceral enterprise,” insofar as it seeks to “neatly contain” any possibility of disorder or disruption within prisons – and thereby to ensure that the very existence of individuals in prison, much less the circumstances of their incarceration, need not intrude upon the public consciousness.

Still, it is widely understood, as Keramet Reiter puts it rather plainly, that “[s]olitary confinement makes people crazy.” Even seemingly short periods of time in isolation can cause grave harms. In a 2011 report, the U.N. Special Rapporteur on Torture, Juan Mendez concluded that as implemented in many countries, including the United States, solitary confinement amounts to cruel, inhuman, or degrading treatment or punishment – and can even rise to the level of torture. Mendez concluded that solitary confinement should never exceed 15 days, given the potentially irreversible psychological harms that can result and, even when used for shorter periods, should only be used in exceptional circumstances as a last resort, and should be limited to definite terms that are as short as possible, communicated to incarcerated individuals, and subject to daily review by qualified medical and mental health professionals.

In recent years, lawyers, scholars, activists, journalists, bar associations, officials, and prisoners themselves have been increasingly effective in bringing concerns about extreme isolation into public view, documenting the ways in which solitary confinement and other forms of extreme isolation cause severe physical, emotional, and psychological harms and compromise safety prison and community safety – particularly when individuals are subjected to prolonged or indefinite periods of isolation. Activists Shane Bauer and Sarah Shourd, for example – who were subject to prolonged solitary confinement in Iran after being detained while hiking near the Iran-Iraq border in 2009 – have effectively used their ordeal in Iran as a springboard to draw attention to concerns over extreme isolation in the United States. The NYCLU’s lawsuit was preceded earlier this year by a lawsuit challenging California’s use of prolonged solitary confinement, and just last month, a federal district court in Massachusetts held that a prisoner’s solitary confinement for 10 months (for throwing pudding at another prisoner) without due process was unlawful. A number of states, including Mississippi, Colorado, and Maine, have taken steps to reduce the number of individuals subject to solitary confinement. And in Washington, Sen. Dick Durbin convened the first congressional hearing drawing attention to solitary confinement in June. As with other aspects of the criminal justice system, reform advocates seeking to curtail these extreme practices – which also are extremely expensive – have ample reason to regard the present moment as one for cautious optimism.

By comparison, little sustained attention has been given to concerns over solitary confinement and other forms of excessive isolation in the nation’s massive immigration detention system, which holds an average of approximately 34,000 individuals on any given day, and close to 400,000 individuals over the course of each year, in over 250 facilities around the country. But the limited information that has been documented paints a similarly grim picture. In 2010, a report on immigration detention in the United States by the Inter-American Commission on Human Rights raised concerns about the use of isolation in a number of facilities as an effectively punitive mechanism, particularly for LGBT individuals, religious minorities, and individuals with mental illness. And earlier this year, the National Immigrant Justice Center and Physicians for Human Rights jointly published the only report to date that specifically investigates the use of segregation and solitary confinement in immigration detention facilities, which frequently commingle individuals held for both immigration and criminal justice purposes:

ICE has failed to enforce consistent segregation standards in its detention facilities. As a consequence, jails often apply local correctional policies to manage both immigration and non-immigration detainees, leading to the widespread use of solitary confinement. . . . Investigators found that solitary confinement in immigration detention facilities is often arbitrarily applied, significantly overused, harmful to detainees’ health, and inadequately monitored.

* * *

Guards have unfettered power over immigrants, who have no legal recourse for unfair custody decisions. Investigators found instances in which jails justified the use of solitary confinement to discriminate against non-English-speaking immigrants and to punish immigration detainees for violations as trivial as dressing improperly or putting their feet on tables. Failure to speak English when able; watching Spanish channels on TV; sitting on counters, tables, or railings; leaning back on chairs; horseplay; pulling pranks; and singing loudly can all lead to 23-hour lockdown according to existing policies.

* * *

According to [ICE’s 2011 detention standards] and many county policies, detention facilities have 30 days to notify ICE when they place an individual in segregation. But facilities can easily avoid ICE oversight. . . . It is unclear whether ICE tracks information related to the segregation of detainees who have been held for less than 30 days. . . . Investigators spoke with a detainee at the Oakdale Federal Detention Center (Louisiana) who was held in solitary confinement for nearly eight months without review. Guards told him they “could hold him as long as [they] wanted” and that he was not going to be released from solitary confinement. [link]

These comparable harms raise distinct concerns in the context of immigration detention, which is a form of civil custody, not criminal punishment. In 2009, the Obama administration pledged to reconstruct this quasi-punitive detention regime into what ICE director John Morton termed a “truly civil detention system.” However, as Human Rights First has documented, those ambitious proposed reforms have thus far failed to transform the detention system away from the underlying criminal correctional paradigm that has characterized immigration detention since the 1980s and 1990s. Moreover, as the NYCLU report illustrates, simply documenting the nature and scale of excessive isolation is a challenging endeavor. In the immigration detention system, these same documentation challenges are compounded by the use of hundreds of facilities across the country – facilities that are often geographically isolated, and to which independent observers often lack meaningful access – and by the overwhelming lack of access to attorneys for many detainees. ICE’s own oversight and information tracking capacities have long been criticized. As the NIJC/PHR report notes, ICE’s nonbinding detention standards do not even require facilities to report their use of segregation for 30 days – a full 15 days after the point at which the UN Special Rapporteur regards solitary confinement to presumptively violate international human rights legal standards.

The apparently routinized use of solitary confinement documented by NIJC and PHR offers perhaps the sharpest illustration of ICE’s lack of progress in transforming the detention system to date. After all, one would be hard pressed to reconcile the routine use of solitary confinement and other forms of excessive isolation – which often rises to the level of cruel, inhuman, or degrading treatment or punishment or even torture in the criminal justice context – with a paradigm of custody meant to be “truly civil,” rather than punitive in nature. It certainly remains possible that as ICE continues to implement its reform initiatives, both oversight and conditions of confinement will improve. With respect to solitary confinement and other forms of extreme isolation, however, a basic and more fundamental challenge – for both the agency and reform advocates – appears to be documenting and drawing attention to the nature and scale of the problem.